Nicole Suckling v Adidem Pty Ltd T/A the Body Shop

[2013] FWC 8682

[2013] FWC 8682

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nicole Suckling
v
Adidem Pty Ltd T/A The Body Shop
(U2013/9753)

COMMISSIONER WILSON MELBOURNE, 4 NOVEMBER 2013

Whether permission should be granted for representation by lawyer or paid agent

[1] In this matter, both the Applicant, Nicole Suckling, and the Respondent, Adidem Pty Ltd T/A The Body Shop, seek permission, pursuant to s.596 of the Fair Work Act (the Act), to be represented by a lawyer in the forthcoming hearing of the Applicant’s unfair dismissal application.

[2] Section 596 provides that a person may be represented in a matter before the Fair Work Commission (the FWC) by a lawyer or paid agent only with the permission of the FWC. The section provides the following with respect to the granting of permission;

(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:

(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

Note: Circumstances in which the FWC might grant permission for a person to be represented by a lawyer or paid agent include the following:

(a) where a person is from a non-English speaking background or has difficulty reading or writing;

(b) where a small business is a party to a matter and has no specialist human resources staff while the other party is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy.

[3] The Applicant’s submissions indicate Ms Suckling believes she was dismissed for alleged serious misconduct.

[4] The Respondent’s submissions reinforce this belief and indicate that there is said to be a “conflict of interest” between Ms Suckling’s obligations to The Body Shop and a consultancy contract she had with another business. The Applicant submits that there was no relevant conflict-of-interest.

[5] The hearing will be of one day’s duration and will include the evidence of the Applicant and three witnesses for the Respondent.

[6] Both parties propose to be represented in the forthcoming hearing by a lawyer, and neither objects to the legal representation of the other.

[7] In Warrell v Fair Work Australia 1, the Federal Court of Australia considered the need for hearings before the FWC to be conducted in a manner that is fair and just2. In this decision, His Honour Flick J noted following;

“24. A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant permission...”. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”.

25. The appearance of lawyers to represent the interests of parties to a hearing runs the very real risk that what was intended by the legislature to be an informal procedure will be burdened by unnecessary formality. The legislative desire for informality and a predisposition to parties not being represented by lawyers emerges, if not from the terms of s 596, from the terms of the Explanatory Memorandum to the Fair Work Bill 2008 which provided in relevant part as follows:

2291. FWA is intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner. Persons dealing with FWA would generally represent themselves. Individuals and companies can be represented by an officer or employee, or a member, officer or employee or an organisation of which they are a member, or a bargaining representative. Similarly, an organisation can be represented by a member, officer or employee of the organisation. In both cases, a person from a relevant peak body can be a representative.

2292. However, in many cases, legal or other professional representation should not be necessary for matters before FWA. Accordingly, cl 596 provides that a person may be represented by a lawyer or paid agent only where FWA grants permission.

...

2296 In granting permission, FWA would have regard to considerations of efficiency and fairness rather than merely the convenience and preference of the parties.” 3

[8] Having considered the matters raised by the parties, I am satisfied this is a matter in which permission for representation of both of the parties by a lawyer is appropriate and that this is not merely for the convenience and preference of the parties.

[9] I am satisfied there is sufficient complexity associated with the issues to be dealt with in the hearing for permission to be granted by the FWC for representation by a lawyer. I am satisfied as a result that a grant of permission will enable the matter to be dealt with more efficiently.

[10] Accordingly, I grant permission for both the Applicant and the Respondent to be represented by a lawyer in the forthcoming hearing of this matter.

COMMISSIONER

 1   Warrell v Fair Work Australia [2013] FCA 291 (4 April 2013).

 2   see Fair Work Act, s.577(a).

 3   Warrell v Fair Work Australia, at [24] - [25].

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